PENNSYLVANIA
PUBLIC UTILITY COMMISSION
Harrisburg, PA 17105-3265
Public Meeting held June 2, 2000
Commissioners Present:
John M. Quain, Chairman
Robert K. Bloom, Vice Chairman
Nora Mead Brownell
Aaron Wilson, Jr.
Terrance J. Fitzpatrick
Application of John Schumacher, t/d/b/a At Your Service Transportation, for the right to transport, as a common carrier by motor vehicle, persons in limousine service between points in Northampton County, and from points in said County to points in Pennsylvania, and return. / A-00115934OPINION AND ORDER
BY THE COMMISSION:
Before the Commission for consideration are the Exceptions of Mandy Ann Cicero, t/d/b/a Champagne Limousine Service (Champagne), and the Joint Exceptions of Elite Industries, Inc., JJ Leasing& Rentals, Inc. and Corporate Livery, Inc. (Joint Protestants) filed on March 14, 2000, in the above-captioned proceeding to the Initial Decision of Administrative Law Judge (ALJ) Ky Van Nguyen issued on February 24, 2000. Replies to the Exceptions were filed by John Schumacher, t/d/b/a At Your Service Transportation (Applicant) on March27, 2000.
History of the Proceeding
By Application filed on May 26, 1999, the Applicant sought approval for the authority captioned above. After notice of the Application was published in the Pennsylvania Bulletin, timely protests were filed, and the proceeding was referred to the Office of Administrative Law Judge for hearing and disposition.
On February 24, 2000, the ALJ’s Initial Decision was issued wherein he recommended that the Application be granted. (I.D., pp. 4-10). Thereafter, the Parties filed Exceptions and Reply Exceptions as indicated above.
Discussion
As a preliminary matter, we note that any issue or Exception which we do not specifically address has been duly considered and will be denied without further discussion. It is well settled that we are not required to consider, expressly or at length, each contention or argument raised by the parties. Consolidated Rail Corporationv. Pennsylvania Public Utility Commission, 155 Pa. Commonwealth Ct.537, 625A.2d 741 (1993); also see, generally, University of Pennsylvaniav. Pennsylvania Public Utility Commission, 86Pa.Commonwealth Ct. 140, 485 A.2d 1217 (1984).
We further note that the ALJ made specific Findings of Fact and Conclusions of Law (I.D., pp. 2-3 and 8-9, respectively) which are incorporated herein by reference, unless modified or reversed, expressly or by necessary implication, by this Opinion and Order.
Also before discussing the Exceptions, we will review the requirements of law regarding the granting of an application to provide service as a common carrier within Pennsylvania. Section 1101 of the Public Utility Code, 66 Pa. C.S. §1101, states that it shall be lawful to provide service as a public utility only after applying for and obtaining a Certificate of Public Convenience from this Commission. Included in the definition of a “public utility” is any person or corporation transporting persons or property as a common carrier. (66 Pa. C.S. §102). The Public Utility Code further states that:
A certificate of public convenience shall be granted by order of the commission, only if the commission shall find or determine that the granting of such certificate is necessary or proper for the service, accommodation, convenience, or safety of the public.
(66 Pa. C.S. §1103(a) (emphasis added).
In applying these requirements to motor carrier applications, we adopted Section 41.14 of our Regulations, which states:
(a) An applicant seeking motor common carrier authority has the burden of demonstrating that approval of the application will serve a useful public purpose, responsive to a public demand or need.
(b) An applicant seeking motor common carrier authority has the burden of demonstrating that it possesses the technical and financial ability to provide the proposed service, and, in addition, authority may be withheld if the record demonstrates that the applicant lacks a propensity to operate safely and legally.
(c) The Commission will grant motor carrier authority commensurate with the demonstrated public need unless it is established that the entry of a new carrier into the field would endanger or impair the operations of existing common carriers to such an extent that, on balance, the granting of authority would be contrary to the public interest.
We further elaborated upon the proper application of these provisions in Application of Blue Bird Coach Lines, Inc. (Blue Bird), 72 Pa. PUC 262 (1990), wherein we stated:
When, through relevant, competent and credible evidence of record, a motor common carrier applicant has shown that the applicant’s proposed service will satisfy the supporting witnesses’ asserted transportation demand/need, the applicant has sustained its burden of proof under subsection41.14(a) by establishing that “approval of the application will serve a useful public purpose, responsive to a public demand or need.” E.g., Seaboard Tank Lines, Inc., 93Pa. Commonwealth Ct. at 613, 502 A.2d at 768; Re Lenzner Coach Lines, Inc., 63 Pa. P.U.C. 217 (1987). See also Morgan Drive Away, Inc. v. Pennsylvania Public Utility Commission (Morgan Drive Away, Inc. II) 16 Pa. Commonwealth Ct. 293, 328 A.2d 194 (1974). This interpretation of subsection 41.14(a) is consonant with our avowed reason for promulgating the transportation regulatory policy statement at 52 Pa. Code §41.14, namely, to eliminate monopolistic protection of existing motor carriers and to promote healthy competition among motor carriers for the purpose of assuring the availability of transportation
service commensurate with the demonstrated public demand/need.
(Id., at p. 274).
We further stated that, based on long-standing Commission and court decisions, the supporting witnesses must identify the Pennsylvania points of origin and destination between which transportation is required. The particular circumstances of a case will determine what constitutes sufficient evidence of a public demand or need regarding the proposed service. The number of witnesses which will constitute a cross-section of the public will necessarily vary with the circumstances of each case, such as the type of service, size of proposed operating territory and the population density therein. The broader the operating authority sought and the more heavily populated the application territory, the more witnesses will be required to demonstrate public demand or need. The converse is also true. (Id., pp.274-275).
T In our decision at Re Perry Hassman, 55 Pa. P.U.C. 661-663 (1982), we stated that fitness consists of three(3) elements: (1) the Applicant must have sufficient technical and operating knowledge, staff and facilities to provide the proposed service; (2) the Applicant must have sufficient financial ability to provide reliable and safe service; and (3) the Applicant must exhibit a propensity to operate safely and legally. With regard to the third item, a lack of fitness is demonstrated by persistent disregard for, flouting or defiance of, the Public Utility Code or the Orders and Regulations of this Commission.
Regarding technical fitness, we stated in our decision at Application of Adgebole Ige, t/a Globe Limousine Service, 75 Pa. PUC 45 (1991) (Globe Limousine):
An applicant must have the technical capacity to meet the need for the proposed service in a satisfactory fashion. An applicant must possess sufficient staff and facilities or operating skills to make the proposed service feasible, profitable, and a distinct service to the public.
In their Exceptions, all the Protestants argue that the ALJ erred regarding the following three(3) main issues: (1)public demand or need (Champagne Limousine Service Exc., pp.1-5, Joint Exc., pp.2-3); (2)the Applicant’s fitness (Champagne Limousine Service Exc., pp.5-6; Joint Exc., pp.4-5); and (3)danger to existing common carriers. (Joint Exc., pp.4-5).
Regarding the first issue, public demand or need, the Protestants argue that the ALJ erroneously determined that the testimony of one(1) witness who supported this Application was credible and demonstrated a need for the proposed service. This, according to the Protestants, does not meet the requirements set forth in Blue Bird, supra. (Champagne Limousine Service Exc., pp.1-5; Joint Exc., pp.2-3).
In our consideration of this issue, we note that the record in this proceeding establishes that the Applicant intends to provide personal service to the elderly in the Slate Belt area of Northampton County, which is comprised of Pen Argyl, Bangor and the surrounding townships. The Applicant stated that he could provide from two(2) to five(5) trips per week. (Tr., pp.9, 17-20). The supporting witness, Rose Cannavo, is a sewing machine operator at Universal Sportswear Bangor, and is the aunt of the Applicant's wife. (Tr., pp.31, 34, 38).
The record further demonstrates that Mrs.Cannavo is an elderly person in the Slate Belt area and needs personal transportation services, such as rides to doctors. (Tr., pp. 35, 36). Mrs. Cannavo further testified that she would use the Applicant's service to the eastern area in Allentown to visit a doctor and contemplates surgery at the Will's Eye Hospital in Philadelphia, for which she will need transportation. (Tr., pp.36, 37). She further stated that, presently, her husband and other family members drive her to doctors. (Tr., pp.38-39).
The Protestants argue that this testimony is not substantial because it is vague and Mrs. Cannavo is related to the Applicant. We disagree. The fact that the witness is related to the Applicant does not automatically disqualify her testimony in support of the Application. Furthermore, we find nothing in the record which would lead us to conclude that Mrs. Cannavo's testimony should be disregarded.
It is true, as the Protestants argue, that the testimony of Mrs. Cannavo is very limited with respect to the requirements of Bluebird, supra. However, we observe that the Applicant intends to serve a very limited clientele, the elderly, in a single county, Northampton. Furthermore, as noted above, the Applicant has testified that he will operate a single vehicle and intends to provide from two(2) to five(5) trips per week. This is a very limited operation, both in clientele and scope. Accordingly, we conclude that, under these circumstances, the support testimony of Mrs.Cannavo is sufficient to meet the requirements of Blue Bird, supra. For these reasons the Protestant's Exceptions regarding public demand or need are denied.
Regarding the second issue, the Applicant’s fitness, the Protestants contend that the ALJ incorrectly determined that the Applicant had demonstrated his fitness. The Joint Protestants argue that record shows that the Applicant is presently employed full-time by Roadway Express and part-time by another limousine service in Allentown. The Joint Protestants argue that his current work schedule requires the Applicant to work seven(7) to 12-hour days with Roadway every other week. Thus, the Joint Protestants submit that there is no evidence that the Applicant has either the time or ability to provide adequate service. (Joint Exc., pp.5-6).
In our consideration of this issue, we note that the Applicant is proposing a very limited operation, as discussed above. Furthermore, the record establishes that the Applicant owns the vehicle which will be used in providing service, a 1990 Lincoln Towncar. (Tr., pp.20, 22).
The record also demonstrates that the Applicant has worked for Roadway as a driver and a supervisor for 24years, and has worked part-time for First Class Limousine in Allentown for the past two(2) years. The record further establishes that, prior to working for First Class, he worked for State Line Transportation in Phillipsburg, New Jersey, for two (2) years where he did most of the paperwork, arranged trips and managed the business whenever he was on duty. (Tr. 6-8).
We determine that, when the very limited scope of the proposed service is taken into consideration, this establishes that the Applicant possesses the necessary vehicle and experience to provide the proposed service. Accordingly, the Exceptions regarding the Applicant's fitness are denied.
Regarding the third issue, the Joint Protestants argue the ALJ erred in not determining that granting the Application will endanger the operations of existing common carriers to such an extent that, on balance, it would be contrary to the public interest. The Joint Protestants contend that the ALJ wrongly determined that the Joint Protestants did not "aggressively oppose the Application." (Joint Exc., pp. 4-5).
In considering this issue, we observe that the ALJ is correct in stating, at page 7 of the Initial Decision, that the Protestants called no public witnesses to testify as to any effect that the Applicant's entry into the market would have on the Protestants’ operations. Furthermore, our review of the record reveals no other evidence to establish that this would be the case. As a result, we conclude that the Protestants have not established that the entry of the Applicant would endanger the existing carriers to such an extent that granting the Application would be harmful to the public interest, as required by our Regulations at 52 Pa. Code §41.14(c), supra. Accordingly, the Exceptions regarding injury to existing carriers are denied.
Conclusion
For the reasons presented above, we determine that the Protestants' Exceptions do not have merit and will be denied. Further, we will adopt the ALJ’s Initial Decision, consistent with our discussion above; THEREFORE,
IT IS ORDERED:
1. That the Exceptions filed by Mandy Ann Cicero, t/d/b/a Champagne Limousine Service, on March 14, 2000, and the Joint Exceptions of Elite Industries, Inc., J & J Leasing & Rentals, Inc. and Corporate Livery, Inc., on March14, 2000, to the Initial Decision of Administrative Law Judge Ky Van Nguyen issued on February24, 2000, are denied, consistent with this Opinion and Order.
2. That the Initial Decision of Administrative Law Judge Ky Van Nguyen is adopted, consistent with this Opinion and Order.
3. That the Application of John Schumacher, t/d/b/a At Your Service Transportation, at Docket No. A-00115934, is granted and a Certificate of Public Convenience shall be issued, upon compliance with the conditions set forth herein, for the following right:
To transport, as a common carrier by motor vehicle, persons, in limousine service, between points in Northampton County, and from points in said County to points in Pennsylvania, and return.
4. That John Schumacher, t/d/b/a At Your Service Transportation shall not engage in any transportation authorized herein until the Applicant shall have complied with the requirements of the Pennsylvania Public Utility Code and the Rules and Regulations of this Commission relative to the filing of proof of insurance and the filing and acceptance of a tariff establishing just and reasonable rates.
5. That John Schumacher, t/d/b/a At Your Service Transportation shall comply with all the provisions of the Public Utility Code as now existing, or as may be hereafter amended, and with all applicable Regulations of this Commission now in effect, or as may hereafter be prescribed by the Commission. Failure to comply shall be sufficient cause to suspend, revoke or rescind the rights and privileges conferred by the Certificate.